AK (Zimbabwe) & Ors v Secretary of State for the Home Department

LORD JUSTICE DAVIS: The first respondent on this renewed application for permission to appeal made by the Secretary of State comes from Zimbabwe. He was convicted on 8th February 2012 of various offences relating in effect to false documentation and use thereof; indeed he seems to have in one way or another obtained some £81,000 by providing a false passport. He received a sentence of 16 months' imprisonment.

In due course the Secretary of State decided to deport him. The matter fell to be considered by reference to section 117A-D to the 2002 Act as amended, read together with paragraphs 398 to 399A of the Immigration Rules which has been subject of a number of decisions of this court, not least in MF(Nigeria).

On the appeal against the decision the first respondent failed in his claim for asylum but succeeded by reference to the Article 8 claim. The determination of the First-tier Tribunal was 134 paragraphs long, dated 15th July 2014. In a number of respects it has to be said the length of the decision should not necessarily be equated with its careful structure or thoroughness. Indeed in many respects it has all the hallmarks of a scissor and paste job, and I regret to say should not be regarded as any kind of model for approaching cases of this kind. It could and should have been much tighter and much more focused on the relevant issues.

At all events the Secretary of State was dissatisfied with the decision which allowed the appeal on Article 8 grounds and sought to appeal to the Upper Tribunal. The Upper Tribunal, by Upper Tribunal Judge Craig, rejected the appeal, by decision of 7th October 2014. Upper Tribunal Judge Craig was by no means necessarily expressing positive approval of the decision below, indeed he regarded it as one which was generous to the respondents; but his conclusion was that there was no material error of law. Accordingly he declined to set aside the First-tier Tribunal decision.

Ms Rowlands, on behalf of the Secretary of State, says there was indeed a material error of law in the First-tier Tribunal decision. She submits that if one reads it, in effect the Tribunal applied what she described as a classical Article 8 approach instead of approaching it through the prism of the new provisions of the 2002 Act and the provisions of paragraphs 398-399A and following of the Immigration Rules. She submits in consequence that the First-tier Tribunal failed to start with, as it were, the presumption to removal and failed to engage with the public interest in requiring removal in such cases unless unjustifiable harshness were to arise. She submits that in the light of that, and in the light of various other authorities post dating MF (Nigeria), the second appeals test is satisfied.

I have carefully considered the original written argument of Ms Rowlands coupled with her supplemental argument for this renewal and her concise oral arguments today. It seems to me that this decision of the First-tier Tribunal was indeed one which was generous in favour of the respondents. It may well be that many judges would have declined to interfere with the decision of the Secretary of State having regard to the statutory provisions as applied to the facts.

However, although, as I have said, the decision of the First-tier Tribunal may properly be subject of criticism in terms of its lack of focus it cannot be said that the First-tier Tribunal have failed to have regard to the relevant statutory provisions or indeed the case of MF (Nigeria). For example, the submissions of the Home Office are fully set out at paragraph 16, referring to the relevant rules in this regard and, as it were, the presumption in favour of removal.

Moreover, although there is a section of the decision which rather unpromisingly is headed "Applying classic Article 8" that has to be put in the context of what is elsewhere said: for example at paragraphs 99 to 101 of the Determination which is headed "Exceptional cases". The Upper Tribunal stated that the Tribunal had been "appropriately referred to the judgment of MF (Nigeria)" and had noted that the requirement was that a case was to be exceptional if removal was not to be ordered. At paragraph 101 the First-tier Tribunal said:

Ms Rowlands also objects that the Tribunal had failed to consider at least the position about removal of the first appellant, perhaps leaving others of his family, the other respondents, in the United Kingdom; but again reading the decisions as a whole, it does appear that the Tribunal had considered each individual individually.

Although in many ways I am very sympathetic to the arguments of Ms Rowlands, one does have to bear in mind here that this is a second appeals matter. It seems to me, although this decision of the First-tier Tribunal can properly be considered unimpressively structured, I am not able to go so far as to say it is demonstrably and plainly irrational and unsustainable; and indeed one has to have respect to an experienced Upper Tribunal judge who, whilst rightly critical of the decision and rightly regarding it as potentially generous, was not prepared to find a material error of law. Since the First-tier Tribunal had taken into account the relevant provisions of the rules as amended and the amended Act, I am not able to say that this particular case satisfies, even arguably the second appeal's test and there is no other compelling reason for giving permission. In saying that, this decision of the First-tier Tribunal is no way to be taken as any kind of precedent: it is to be confined to being a decision on its own particular facts. Moreover, it is to be done so in the context where the outcome may well have been generous to the respondents.

So overall I reluctantly refuse this application.